While there is no universal requirement for employers to offer access to the EAP to their employees, these programs can be a valuable resource. There is no government law that prevents a company from requiring a representative to use an EAP program. However, requiring a worker to use an EAP may involve the government's anti-disability segregation law, the Americans with Disabilities Act. In this regard, managers must be careful when requiring a representative to use an EAP and must ensure that any prerequisites for a worker to use an EAP are “work-related and predictable to business needs.”.
What constitutes an EAP may be different for different employers. Some may offer a variety of benefits, such as financial, legal and health or wellness services. Others may offer counseling services only. However, with respect to health-related services, EAPs are generally divided into two types.
The first type is the one that mainly provides referral services. The second type actually provides health-related services. Depending on the type and level of health services provided, an EAP may be subject to different legal requirements. This blog post will address when an EAP may be subject to the requirements of COBRA, ERISA and the Affordable Care Act, as well as the Mental Health Parity and Addiction Equity Act (MHPAEA) and state insurance laws, such as California's Knox-Keene Act.
EAPs are exempt from ACA requirements if they qualify as “exempt benefits”. Excepted benefits are generally exempt from the health reform requirements added by the Health Insurance Portability and Accountability Act (HIPAA), as well as by the ACA. If an EAP does not qualify as an excepted benefit, it would be subject to ACA market reforms, such as annual dollar limits, rating limits and essential minimum coverage requirements, as well as to MHPAEA requirements. Employer-sponsored EAPs that offer “medical care or benefits,” as described above and are therefore subject to ERISA, should not be subject to state insurance laws.
Section 514 (a) of the ERISA “generally prevails over all state laws to the extent that they “relate to employee benefit plans covered by Title I of the ERISA.”. DOL 96-06A Advisory Opinion Letter (March 25, 1999). Self-insured plans cannot be considered insurance companies or be engaged in the insurance business for the purposes of state insurance regulation. State laws also may not directly regulate insured group health plans, but may indirectly regulate those plans by regulating the plan's insurer and its insurance contracts.
Whether it's Knox-Keene or any other state insurance law, there is an argument that an EAP subject to ERISA requirements should not also be subject to state insurance law. This double compliance frustrates the purpose of ERISA, which, as noted earlier in the Traveller's case, was to create a uniform administration of employee benefit plans. Perhaps EAP providers that offer unlimited counseling services for a fixed fee could qualify as insurers if they assume risks. However, it is not clear how state regulation could circumvent the ERISA preference clause if the EAP is fully funded by the employer based on the number of services provided.
Regardless of how EAP services are structured, it is vital that EAP programs consult with legal counsel to ensure that they accurately identify and comply with the laws that apply to them. Contact the Center for Health and Wellness Law, LLC if you would like to learn more about how we can help you in that process. These requirements include informing employees of their rights to continue coverage and then allowing employees to continue using the EAP even after losing their job up to 36 months after the job loss, depending on the circumstances. If an employee decides to continue their coverage through COBRA, they can pay up to 102% of the total premium cost.
Under this pricing structure, the employer pays a fixed rate per employee per month, multiplied by the total number of employees over each contract year. In 2000, the EEOC noted in an informal discussion letter that requiring an employee to use an EAP could violate the prohibition of treating an employee as if they had a disability. Therefore, employers must be careful not to require an employee to use an EAP and must ensure that any requirement for an employee to use an EAP is “work-related” and consistent with business needs. The EAP admissions specialist verifies eligibility to receive benefits and then refers the caller to his specialized network of EAP providers that are geographically convenient for the employee or the employee's family member.
Providing employees with support for issues that affect their well-being will improve the effectiveness of your drug-free work program. Documentation of all training provided to employees and supervisory staff should be included in the training program. Similarly, an EAP that provides advice to employees who have certain personal problems described, and the counselor identifies the problem, suggests a plan of action, and refers the employee to an outside service, would also be subject to ERISA. An external program provides employees and their family members with access to a toll-free number for admission to the service.
The employer will identify the training of the employee and the EAP supervisor in the employer's drug testing program. These professionals can be direct employees of the company or they can be employees of an EAP provider that has been hired to provide on-site services in the workplace. As a final note, in the event that an employee with a potential mental health disability threatens a co-worker, courts have held that the employee can be fired regardless of the disability. Employee assistance programs are incredibly effective in giving employees who have personal or professional problems in the workplace an opportunity to improve their performance.
Under this structure, an employee can meet with an in-house employee assistance professional, if the location is convenient. The Employee Assistance Program (EAP) is a joint labor management program that benefits New York State employees by improving employee well-being, increasing productivity and improving workplace morale. . .